Attorney-General for the State of Queensland v WMS (No 2) [2021] QSC 236

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v WMS (No 2) [2021] QSC 236 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v WMS (respondent) FILE NO/S: BS No 1389 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED EX TEMPORE ON: 10 August 2021 DELIVERED AT: Brisbane HEARING DATE: 10 August 2021 JUDGE: Williams J ORDER: The order of the Court is that: 1. Until further order of the Court, no identifying particulars of the respondent be disclosed. 2. Order 1 is subject to the publication and disclosure of identifying particulars of the respondent required for the proper administration of justice by necessary staff of the following government agencies: (a) Crown Law; (b) Queensland Corrective Services; (c) Queensland Police Service; (d) NSW Police Force; (e) Corrective Services NSW; (f) the Department of Justice and Attorney-General (Qld); (g) the Department of Premier and Cabinet (Qld); (h) the Department of Justice (NSW); and (i) the Department of Premier and Cabinet (NSW). -- 1 of 7 -- 2 The applicant must inform any person or entity to whom she communicates the making of the orders, of the making and the terms of this non-publication order, and the potential for proceedings for contempt of Court as a result of any conduct which deliberately frustrates the effect of this non-publication order. 3. Order 1 is also subject to the respondent’s reporting obligation under the Child Protection (Offender Reporting and Offender Prohibition) Act 2004. The respondent is authorised to inform the relevant person or entity to whom he is required to report under that Act of the making of the orders. The respondent must also inform any person or entity to whom he communicates the making of the orders, of the making and the terms of this non-publication order and the potential for proceedings for contempt of Court as a result of any conduct which deliberately frustrates the effect of this non-publication order. 4. Access to the Court file by any member of the public be restricted until further order of the Court. CATCHWORDS: EVIDENCE – MISCELLANEOUS MATTERS – NON- PUBLICATION OF EVIDENCE – ORDERS – NON- PUBLICATION OF IDENTITY – where orders were made in July 2021 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) releasing the respondent to a supervision order – where reasons for the decision were published – where a temporary non-publication order was made in August 2021 – whether the non-publication order should remain in place Supreme Court of Queensland Act 1991 (Qld), s 8 Attorney-General for the State of Queensland v Fardon [2019] QSC 2, considered Attorney-General for the State of Queensland v WMS [2021] QSC 177, cited John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, considered COUNSEL: M Maloney for the applicant K T Bryson for the respondent SOLICITORS: Crown Law for the applicant Wallace O’Hagan Lawyers for the respondent [1] On 29 July 2021, I made orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) releasing the respondent to a supervision order, which will remain in force until 29 July 2031. Reasons for my decision were published on -- 2 of 7 -- 3 the Supreme Court website in a form under the name of Attorney-General for the State of Queensland v WMS.1 [2] Following media inquiries with the Registry on 4 August 2021, a temporary non- publication order was made by me in Chambers as follows: “The Court orders that until further order of the Court, no identifying particulars of the respondent be disclosed.” [3] Subsequent to that order being made in Chambers, the parties were notified and requested to provide written submissions for consideration by the Court as to the issues of whether the non-publication order should remain in place and the power of the Court to do so. This also included the issue of whether the judgment should continue to only be available to the public in anonymised form. [4] The relevant background is set out in considerable detail in the published reasons. I will not repeat them for the purposes of today’s considerations. One of the factors recorded in the reasons for judgment as relevant background was that the respondent is subject to two current warrants in New South Wales and is facing possible extradition proceedings from Queensland to New South Wales in respect of historical sex offences alleged to have been committed in New South Wales. [5] The affidavit material before the Court on the previous occasion and which is identified in the reasons for judgment outlines the potential procedure in the event that extradition proceedings are commenced. [6] The Court has been advised that the extradition proceedings are yet to commence and it is presently unknown when that will occur, particularly given the current COVID- 19 restrictions which are in place in respect of travel between Queensland and New South Wales. Therefore, it is unknown at this stage the likely timeframe of those extradition proceedings and also whether those extradition proceedings will be successful or not. [7] Under s 8 of the Supreme Court of Queensland Act 1991 (Qld), the Court has a power to limit the extent to which the business of the Court is open to the public, but this is subject to the proviso that it is in the public interest or the interests of justice require it. Bowskill J considered this power in Attorney-General for the State of Queensland v Fardon,2 where her Honour stated:3 “The court has an express power under s 8 of the Supreme Court of Queensland Act 1991 (Qld) to limit the extent to which the business of the court is open to the public provided that the public interest or the interests of justice require it. As the Court of Appeal said in R v McGrath [2002] 1 Qd R 520, after referring to the earlier equivalent of this power (at [8]): ‘This is a confirmation and perhaps an extension of the common law power of the court to prohibit publication of proceedings where the Court considers this necessary for the purpose of 1 [2021] QSC 177. 2 [2019] QSC 2. 3 At [105]. -- 3 of 7 -- 4 administering justice. The power includes the power to sit in camera if justice cannot otherwise be attained. However, the court has always regarded as fundamental the requirement that judicial proceedings be conducted in open court where members of the public may be present. The power of the court to exclude the public and limit publication of its proceedings is undoubted, but as McPherson J (as he then was) observed in Ex Parte The Queensland Law Society Incorporated: ‘… the power of the court under general law to prohibit publication of proceedings conducted in open court has been recognised and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice …’” (footnotes omitted) [8] Another relevant authority is the decision in John Fairfax & Sons Pty Ltd v Police Tribunal (NSW),4 where McHugh JA (as his Honour then was) reasoned: “The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.” [9] I have also been referred to a number of cases where suppression orders in sex offence matters have been considered one of the examples in which it may be appropriate to depart from the normal principles of open justice. For example, I have been referred to the decision of Hogan v Hinch5 and also examples in the context of the DPSO Act, decisions such as Attorney-General for the State of Queensland v SRD6 and Attorney- General for the State of Queensland v Fardon.7 [10] In considering whether it is appropriate in the current circumstances to make a non- publication order it is necessary to consider whether the circumstances are such that the making of the order is necessary for the proper administration of justice. Whilst 4 (1986) 5 NSWLR 465. 5 (2011) 243 CLR 506. 6 [2019] QSC 52. 7 [2019] QSC 2. -- 4 of 7 -- 5 the starting point is that the administration of justice must take place in open Court, the interests of justice may mean that other interests are to be considered and balanced against that. [11] In the current circumstances, the respondent has outstanding charges in New South Wales of a similar nature. It is submitted that to ensure the fair conduct of the proceedings in New South Wales a non-publication order in this matter would be in the interests of justice. It is submitted that such an order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice in the New South Wales proceedings. It is conceded by the Crown that a non-publication order should only be temporary and should only operate until the respondent’s New South Wales proceedings have concluded, if the extradition application is successful or alternatively, if the extradition application is unsuccessful, then that also may give rise to the non-publication order not being in place. [12] However, there is the additional consideration of the reasons for judgment in this particular matter. The reasons for judgment have been de-identified and published in an anonymised form. It is submitted by both the applicant and the respondent that the reasons for judgment should continue to remain anonymised. The interests of the victims are relevant to the consideration in respect of the reasons for judgment. Considerations under the Child Protection Act 1999 (Qld) are also relevant to these considerations. [13] The victims of the offences in Queensland and also in relation to the earlier New South Wales proceedings were children at the time of the offending and the starting position is that identifying information about them should not be published. It is submitted that whilst the reasons for judgment in this matter do not name the victims, if the name of the respondent was published, this could lead to the identification of the victims. The applicant also points to a number of relevant factors including two previous judgments of the Court of Appeal which are publicly available which name the respondent, and one which contains the name of one of the victims. [14] There has also been substantial media interest in this matter and there are no submissions from the Eligible Person Register. [15] The Crown also submits that the criminal proceedings concluded over 15 years ago, and the Court does not currently have any information before it to suggest that the victims give their consent for any identifying information to be published. [16] The reasons for judgment which have been published contain the details of the respondent’s offending, particulars of his custodial sentence and psychiatric assessments which can be accessed by members of the public. The provision of the reasons does not limit the ability of members of the public to engage in and understand these proceedings. [17] However, by anonymising the respondent’s name, the published reasons for judgment limits the ability of members of the public to identify the victims, which is consistent with the objective of the Child Protection Act 1999 (Qld) and also the wider interests of justice. These factors support that the victims of the respondent’s offending should be protected from identification by anonymised reasons for judgment. -- 5 of 7 -- 6 [18] The Court has power to make a non-publication order and I consider that to ensure the proper administration of justice in respect of the issues relevant to the Queensland victims and also the interests of the administration of justice in respect of the potential trial in New South Wales, on balance, favour the making of a non-publication order. [19] It is also necessary to consider the practical workings of the requirements of both the DPSO Act and the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). In draft orders provided to the Court, it is proposed that the non-publication order be subject to the ability of the applicant to advise the necessary staff of specified government agencies in order to facilitate the relevant legislation and further, that the respondent be able to report as required under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) in respect of those requirements. [20] In respect of the duration of the order, given the current uncertainty in respect of the timing of any extradition proceedings and the New South Wales proceedings, I consider on balance that it is appropriate to frame the order as being until further order of the Court. This provides a protection that at an appropriate point in time, a further application can be made to this Court to vary the non-publication order and to consider the particular circumstances that arise at that point in time. [21] I will make the order in the terms of the draft provided to me, but for the avoidance of any doubt, I will also announce the orders in open Court. [22] The order of the Court is that: 1. Until further order of the Court, no identifying particulars of the respondent be disclosed. 2. Order 1 is subject to the publication and disclosure of identifying particulars of the respondent required for the proper administration of justice by necessary staff of the following government agencies: (a) Crown Law; (b) Queensland Corrective Services; (c) Queensland Police Service; (d) NSW Police Force; (e) Corrective Services NSW; (f) the Department of Justice and Attorney-General (Qld); (g) the Department of Premier and Cabinet (Qld); (h) the Department of Justice (NSW); and (i) the Department of Premier and Cabinet (NSW). The applicant must inform any person or entity to whom she communicates the making of the orders, of the making and the terms of this non-publication order, and the potential for proceedings for contempt of Court as a result of any conduct which deliberately frustrates the effect of this non-publication order. -- 6 of 7 -- 7 3. Order 1 is also subject to the respondent’s reporting obligation under the Child Protection (Offender Reporting and Offender Prohibition) Act 2004. The respondent is authorised to inform the relevant person or entity to whom he is required to report under that Act of the making of the orders. The respondent must also inform any person or entity to whom he communicates the making of the orders, of the making and the terms of this non-publication order and the potential for proceedings for contempt of Court as a result of any conduct which deliberately frustrates the effect of this non-publication order. [23] I further order that: 4. Access to the Court file by any member of the public be restricted until further order of the Court. [24] The justification for order 4 is for the same reasons as outlined in relation to the earlier orders. -- 7 of 7 --